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<7 i 






AN ESSAY 


ON THE 


CONSTITUTION AND GOVERNMENT OP 
THE UNITED STATES. 


BY HON. WILBIAM HUNTER, 

M 

(JUDGE 07 THE CRIMINAL COURT OF MEMPHIS.) 



M P: M P H I S : 

Printed by James Dmnars, No. Id Union Street. 
186 8 . 










Entered according to act of Congress, April 9, 1868, by 
WILLIAM HUNTER, 


In the office of tlie Clerk of the District Court of the United States for the District of 

West Tennnssee. 




INTRODUCTION. 


In preparing and presenting the following pages to the public, 
the author has been influenced by a desire to supply what has long 
appeared to be a great public want in the political literature of 
this country. An analysis of the fatal heresies of State sovereignty^ 
State allegiance and secession^ upon a legal and constitutional basis, 
which would present the subject in a form accessible to the mass of 
the people; for although the fact may not be realized by the Gov¬ 
ernment, or the leading statesmen of the country, it is beyond 
question that in the Southern States lately in rebellion, these errors 
pervade to an alarming extent the great mass of the people, and 
indeed enter into the political doctrines of the Democratic party 
throughout the Union. With the exception of the celebrated 
speech of Mr. Webster on the Foote resolution, the speech of 
Hon. K. J. Walker before a Mississippi Convention, and a very able 
lecture delivered in Cincinnati, in 1862, by the learned President of 
Marietta College, upon the subject of allegiance, nothing has ap¬ 
peared of any value, calculated to inform the public mind upon the 
most important question to every American citizen: the nature and 
character of his own Government, a question which, even in the 
very able expositions referred to, has scarcely been touched upon. 
The argument of Mr. Webster, as well as that of Mr. Walker, was 
to a certain extent conflned to the question of Nullification. The 
lecture of Dr. Lawrence, although able and exhaustive as a moral 
and political essay, left the legal, constitutional and historical argu¬ 
ment almost untouched. 

It is a fact too patent to be disputed, that among the Southern 
people, particularly that class which has been identified with Slavery 
and the Eebellion, there is not only no attachment for, but a decided 
antipathy to, a republican form of government. The moral and 
social influence of the institution which prevailed among them, has 
been such, operating not only upon their habits and customs, but 
ultimately upon their character, through a series of many genera¬ 
tions, that it has not failed to show itself upon their whole moral and 
intellectual being. So that, although the Saxon and Celtic element 



[4] 


of tlie South, of the same stock and ancestry of those types in the 
North, have, in common with French, Huguenots, Spanish and 
Italians there, they have all been molded, through the influence of 
slavery, into a people whose social and political affinities are in direct 
antagonism with those of the people of the Northern States and the 
spirit and principles of the American Constitution. In their conver¬ 
sation this dominant class are generally monarchists, and so far as 
the^ are concerned, it is matter of little or no consequence what is the 
nature of the constitution or government. As one of the great results 
of the revolution which has overturned all their dominion and power 
as a caste, the destruction of the institution of slavery has left them 
the recollection of their former high position only, and a spirit of 
resentment against the people and the Government, as the authors 
of what they deem their greatest calamity. 

It is not to these, or to their class, that the argument in these 
pages is addressed, but to those of the South who have felt the power 
and terrible proscription of the slave tyrants, and who were driven 
to fight the great battle of slavery against the nation. To them and 
to all true American citizens, who, however misled by the sophistry 
of a corrupt political school, which has sought under the name of 
Democracy to betray the people and destroy the nation, yet who are 
still devoted to the welfare and glory of their native land, and who 
desire to understand the true nature of that Government which has 
shown itself to be the best as well as the most powerful on earth; to 
the patriots and philanthropists of Europe, who would learn the 
character of our institutions—who have sympathized with us in our 
late struggle; to them we present these pages, in the hope that they 
may not prove valueless in directing the minds of all honest in¬ 
quirers to a rational understandiug of the nature of the American 
Government. 


SOVEREIGNTY. 


Sovereignty, as defined by Webster, is: 

“Supreme power; possessing supreme dominion; supreme; supe¬ 
rior to all others; predominant; pertaining to the chief magistrate 
of a nation, as sovereign authority.” 

“ Sov’EREiGN; a supreme lord; one who possesses the highest 
authority, without control; some earthly princes, kings and empe¬ 
rors, are sovereigns in their dominions,” 

“A Sovereign ; a supreme magistrate, a king.” 

“Sovereignty; supreme power; supremacy; the possession of 
the highest power; of uncontrollable power. 

As defined by Bouvier: 

“ Sovereignty is the union and exercise of all human power^ 
to do everything in a state, without accountability; to make laws, 
execute and apply them; to impose and collect taxes and levy con¬ 
tributions ; to make w’^ar or peace ; to form treaties of alliance and 
commerce with foreign nations, and the like.” 

Story, in his work on the Constitution, section 207, says ; 

“ In the first place, antecedent to the Declaration of Independence, 
none of the colonies were or pretended to be sovereign, in the sense 
in which the term sovereign is applied to States. The term ‘sover¬ 
eign,’ or ‘sovereignty,’ is used in different senses, which often leads 
to a confusion of ideas, and sometimes to very mischievous and 
unfounded conclusions. By sovereignty, in its largest sense, is 
meant supreme., absolute, uncontrollable power —the absolute right to 
govern.” 

What are the essential attributes of sovereignty ? Certainly such 
as entitles the government possessing them to recognition as an 
independent power, and as one among the family of nations. 

Among the essential attributes of sovereignty of a State or nation 
are— 

1st. The right to perpetuate its own existence by force of arms, 
and to that end. 

To declare war, suppress insurrections and repel invasions, grant 
letters of marque and reprisal, and make rules concerning captures on 
land and water; 

To raise and support armies and navies; 



[ 6 ] 


To borrow money, and issue bonds and bills of credit therefor; 

To lay and collect taxes, duties, imposts and excises; 

To regulate commerce, internal and international; 

To coin money and regulate the value thereof, and fix the standard 
of weights and measures; 

To provide for the punishment of treason, and all crimes and 
offenses against its own authority and against the laws of nations; 

To exercise supreme authority over all territory, including all 
property and persons within the national boundaries, excepting, only, 
consuls, ministers, and ambassadors of foreign States; 

To enter into treaties of alliance, commerce and amity with foreign 
States and nations; 

To control and regulate the rights, duties and privileges of its 
own citizens, and to protect them as such when denizens of foreign 
countries; 

To acquire and extend its territory by cession, treaty and conquest. 

These attributes of sovereignty are so essential that a State with¬ 
out them is necessarily without sovereignty, for it consists alone in 
their possession and enjoyment. 

The original Articles of Confederation, adopted during the pro¬ 
gress of the Revolution, and before the acknowledgment of inde¬ 
pendence by Great Britain, contains the following “ Preamble:” 

ARTICLES OF CONFEDERATION. 

Whereas, The delegates of the United States of America, in 
Congress assembled, did on the fifteenth day of November, in the 
year of our Lord one thousand seven hundred and seventy-seven, 
and in the second year of the independence of America, agree to 
certain articles of confederation and perpetual union between the 
States of New Hampshire, Massachusetts Bay, Rhode Island and 
Providence Plantations, Connecticut, New York, New Jersey, Penn¬ 
sylvania, Delaware, Maryland, Virginia, North Carolina, South Caro¬ 
lina, and Georgia, in the words following: 

Articles of Confederation and perpetual union between the States of 

New Hampshire, Massachusetts Bay, Rhode Island and Providence 

Plantations, Connecticut, New York, New Jersey, Pennsylvania, 

Delaware, Maryland, Virginia, North Carolina, South Carolina, 

and Georgia. 

The style of this Confederacy shall be “ The United States of 
America.” 

Each State retains its sovereignty^ freedom and independence, and 
every power, jurisdiction and right which is not by this Confedera¬ 
tion expressly delegated to the United States, in Congress assem¬ 
bled. * * * ^ 

No State, without the consent of the United States in Congress 


[7J 


assembled, shall send any embassy to, or receive any embassy from, 
or enter into any conference, agreement, alliance or treaty, with any 
king, prince or State; nor shall any person holding any office of 
profit or trust under the United States, or any of them, accept any 
present, emolument, office or title, of any kind whatever, from any 
king, prince or foreign State; nor shall the United States in Con¬ 
gress assembled, or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty^ confederation 
or alliance whatever between them, without the consent of the 
United States in Congress assembled, specifying accurately the pur¬ 
poses for which the same is entered into, and how long it shall 
continue. 

No State shall lay any imposts or duties, which may interfere 
with any stipulation in treaties entered into by the United States in 
Congress assembled, with any king, prince or state, in pursuance of 
any treaties already proposed by Congress to the courts of France 
or Spain. 

No vessels of war shall he kept in time of peace by any State, 
except such number only as shall be deemed necessary by the 
United States in Congress assembled, for the defense of such State 
or its trade; nor shall any body of forces be kept up by any State, 
in time of peace, except such only as in the judgment of the United 
States in Congress assembled shall be deemed requisite to garrison 
the forts necessary for the defense of such State. * * 

No State shall engage in any war without the consent of the 
United States in Congress assembled, unless such State be actually 
invaded by enemies, or shall have received certain advice of a reso¬ 
lution being formed by some nation of Indians for that purpose to 
invade such State, and the danger is so imminent as not to admit of 
delay till the United States in Congress assembled can be consulted; 
nor shall any State grant commissions to any ships or vessels of war, 
nor grant letters of marque and reprisal, except it be after a decla¬ 
ration of war by the United States in Congress assembled, and then 
only against the kingdom or State, and the subjects thereof, against 
which war has been so declared, and under such regulations as shall 
be established by the United States in Congress assembled, unless 
such State be infested by pirates, in which case vessels of war may 
be fitted out for that occasion, and kept so long as the danger shall 
continue, or until the United States in Congress assembled shall 
determine otherwise. 

^ ^ 

The United States in Congress assembled shall have the sole and 
exclusive right and power of determining on peace and war^ (except 
in the cases mentioned in the sixth article,) of sending and receiving 
ambassadors, of entering into treaties and alliances, (provided that 
no treaty of commerce shall be made whereby the legislative power 
of the respective States shall be restrained from imposing such im¬ 
posts and duties on foreigners as their own people are subjeet to, or 
of prohibiting the exportation or importation of any species of goods 


[ 8 ] 


or commodities whatsoever,) of establishing tribunals for deciding in 
all cases what captures on land or water shall be legal, and in what 
manner prizes taken by land or naval forces shall be divided or 
appropriated; of granting letters of marque and reprisal in times of 
peace; appointing courts for the trial of piracies and felonies com¬ 
mitted on the high seas, and establishing courts for receiving and 
(letermining finally appeals in all cases of captures. 

^ >i< * 

The United States in Congress assembled shall also be the last 
resort on appeal in all disputes and differences now subsisting, or 
that hereafter may arise between two or more States, concerning 
boundary jurisdiction or in any case whatever. 

All bills of credit emitted, moneys borrowed and debts contracted, 
by or under the authority of Congress, before the assembling of the 
United States, in pursuance of the present Confederation, shall be 
deemed and considered as a charge against the United States, for 
payment and satisfaction whereof the said United States, and the 
public faith, are hereby solemnly pledged. 

Every State shall abide by the determination of the United States 
in Congress assembled^ on all questions which by this Confederation 
are submitted to them ; and the Articles of this Confederation shall 
be inviolably observed by every State, and the Union shall he per¬ 
petual; nor shall any alteration at any time hereafter be made, in 
any of them, unless such alteration be agreed to by a Congress of the 
United States, and be afterwards confirmed by the Legislature of 
every State. 

And, whereas, it hath pleased the great Governor of the world to 
incline the hearts of the Legislatures we respectfully represent in 
Congress, to approve of and to authorize us to ratify the said Articles 
of Confederation diJidi perpetual union, know ye, that we, the under¬ 
signed delegates, by virtue of the power and authority to us given 
for that purpose, in the name and on behalf of our respective con¬ 
stituents, fully and entirely ratify and confirm each and every of the 
said Articles of Confederation 2LXi^ perpetual union, and all and sin¬ 
gular the matters and things therein contained; and we do further 
solemnly plight and engage the faith of our respective constituents, 
that they shall abide by the determination of the “ United States in 
Congress assembled,” on all questions which by the said Confedera¬ 
tion are submitted to them, and that the Articles thereof shall be 
inviolably observed by the States we respectively represent, and that 
the Union shall be perpetual. 

/ In these Articles the States retain their sovereignty. 

A legitimate question presents itself. When, where and how did 
the States obtain that sovereignty which they profess to have re¬ 
tained ? Sovereignty being that attribute which, when applied to 
States, belongs alone to an independent power, recognized as such by 
the great family of nations. To say that an embryo government, 
struggling to establish itself as a member of that family, and before 


[9] 


the question of its independence has been determined by the only 
tribunal capable of determining it—the great family of nations—is 
already an independent sovereign State, is a proposition unknown to 
international law, and would compel us to declare that Poland, 
Ireland, Italy and Hungary arc now sovereign and independent States. 

To this it may be replied, that the colonies subsequently obtaining 
their independence were confirmed in their demand therefor, and 
that the sovereignty subsequently acknovdedged related back to date 
of their demand or declaration of independence. 

Let us see. Can a people or province seeking independence, 
who, in order to obtain it, transfer their allegiance to a third power,, 
by whose arms they are liberated, claim or possess such independ¬ 
ence wdthout the acknowledgment of that power to which they owe 
their liberation and to which, for the purpose of securing that lib¬ 
erty, they transferred their allegiance? They may have improved 
their condition by substituting one government for another, but have 
not obtained either sovereignty or-independence until both are ac¬ 
knowledged by the power that alone has the right to bestow it. 

The people of the colonies, for the purpose of obtaining independ¬ 
ence, not of the colonies separately, but of the loholc people, in order 
to establish a nation, combined, all for the benefit of each, the 
armies of the “ United States in Congress assembled f and relieved the 
people of Carolina from British dominion. To enable the United 
States to do this the people of Carolina, while they claimed to retain 
a sovereignty they never had, surrendered to the United States, in 
the Articles of Confederation, every important and substantial ele¬ 
ment of sovereignty, so far as they could surrender the same, and that 
surrender perpetual. Without this the revolution must have 
failed; to insure this there must have been a government. That 
government must of necessity possess the powers which experience 
has proven necessary to sustain it. 

The people, then, conferred these powers, and, to prevent internal 
conflict, expressly prohibited them to the States in the Articles of 
Confederation. Could harmony and unity of action have been pre¬ 
served if, without the consent of the United States, each State could 
have sent and received embassies, entered into alliance and treaty 
with any “king, prince or State,” or with each other; laid imposts 
and duties, kept vessels of war in time of peace, engaged in war, 
granted letters of marque and reprisal, coined money, fixed the 
standard of weights and measures, appointed officers for the land and 


[lOJ 


naval forces—made rules for their government and directed their 
operations; determined questions between themselves, without an 
appeal to the “ United States in Congress assembled” as a last resort? 
Yet by the Articles of Confederation these are conferred by the 
people upon the United States in Congress, and expressly prohibited 
to the States, and that forever. The people therein transferred their 
allegiance from Grreat Britain, not to the States, but to the power 
known as “ the. United States in Congress assembled.” 

In a free government all sovereignty is with the people, and un¬ 
less conferred by them the government can neither obtain nor 
possess it. 

There is not to be found in any Constitution adopted by the people 
of any State prior to either the Articles of Confederation or the 
Federal Constitution, any provision in which the people conferred 
upon their State government any of the essential attributes of sov¬ 
ereignty ; therefore, if the States ever possessed any sovereignty 
they obtained it surreptitiously, for it was never given to them, or 
any of them. 

To say that G-reat Britain, in acknowledging our independence, 
conferred sovereignty and separate independence upon each of the 
States, without the consent or authority, either of the whole people 
or of the] people of a single State, thus dividing a nation into frag¬ 
ments whose united efforts had compelled that acknowledgment, 
destroying our nationality, forcing a repudiation of our national ob¬ 
ligations, as a consequence taking from the General Government the 
power to borrow money upon the national faith by a destruction of 
the national credit, and instead of conferring upon us independ¬ 
ence as the people of the United States, bequeathed to us, in the 
erection of thirteen sovereign States, an inheritance of continuous 
discord, interminable wars, probable anarchy, and, as a consequence, 
ultimate despotism. Thus destroying the whole end and aim of the 
Revolutionary fathers, when they proclaimed to the world the causes 
which led them, as one people., to dissolve the political bands which 
connected them with another, and to assume among the “ powers of 
the earth” “ the separate and equal station to which the laws of na¬ 
ture and of nature’s God entitled them.” 

If the people at that day really intended that each State should 
retain its sovereignty and independence, why did they bind them¬ 
selves in 2 kperpetual union, which bond of perpetuity was of itself 
necessarily a complete surrender of all sovereignty, for the whole 


[ 11 ] 


argument may be included in a single proposition : If the States, 
being sovereign in the Articles or Federal Constitution, retained the 
right of secession, they retained the right to resume that sovereignty; 
but if instead of retaining that right, they voluntarily surrendered to 
the United States every attribute of sovereignty, and that forever^ and 
bound themselves in a union that was, in the language of the instru¬ 
ment itself, to be perpetual, they surrendered not only every attribute 
of sovereignty, but also abandoned forever the power to resume it. 

If under the Articles of Confederation the States were to retain 
their sovereignty, freedom and independence, and that uncontrollable 
power which belongs to sovereignty, why did they forever confer 
upon the United States in Congress assembled the exclusive right to 
send and receive ambassadors, to enter into any conference, alliance 
or treaty with any king, prince or State? Why were any two or more 
States expressly prohibited from entering into any treaty, alliance or 
confederation with each other, without the consent of the United 
States in Congress assembled—that consent specifying, accurately, 
the purposes for which the same is entered into, and how long it 
should continue ? Why were the States prohibited from laying any 
imposts or duties which might interfere with treaties made, or to be 
made, by the United States in Congress assembled ? Why were the 
States prohibited from keeping vessels of war in time of peace, ex¬ 
cept such number only as should be deemed necessary by the United 
States in Congress assembled, for the defense of such State or its 
trade ? Why were the States prohibited from keeping any body of 
forces or troops, except such number as should be deemed requisite 
for garrisoning the forts necessary for the defense of such State ? If 
each State retained its sovereignty, why was each State, by the Arti¬ 
cles of Confederation, prohibited from engaging in war, without the 
consent of the United States, unless each State be actually invaded 
by enemies, or in such immediate danger as not to admit of delay 
till the United States could be consulted? Why were the States 
forbidden to grant commissions to ships of war, or letters of marque 
and reprisal, until after a declaration of war by the United States, 
and then only under such regulations as should be established by 
the United States? 

If the States retained their soverereignty, why was the United 
States given the sole and exclusive right and power of determining 
on peace and loar, excepting the emergencies already named—of 
sending and receiving ambassadors, of entering into treaties and 


[ 12 ] 


alliances, of establishing tribunals for determining captures on land 
or water, of granting letters of marque and reprisal, appointing 
courts for the trial of piracies, and determining appeals in all cases 
of captures? If the States retained their sovereignty, why by the 
Articles of Confederation were the United States in Congress assem¬ 
bled made the last resort on appeal in all disputes between two or 
more States, concerning boundary, jurisdiction, or in any case what¬ 
ever? If the States were sovereign, and could withdraw from the 
Union at pleasure, why in the Articles of Cconfederation were the 
debts contracted and moneys borrowed by Congress made a charge 
against the United States, and the public faith pledged for their 
payment? If, under the Articles of Confederation, each State re¬ 
tained its sovereignty, why was each State bound to abide by the 
determination of the United States in Congress assembled on all 
questions therein submitted to them, and why was the Union made 
perpetuall If the States retained their sovereignty, why was any 
alteration of the Articles of Confederation forbidden, unless agreed 
to by Congress, and afterwards confirmed by every State f 

Can the adherents of the doctrine of State sovereignty explain of 
what kind is that sovereignty which has stripped itself forever of the 
power to send or receive ambassadors, or to enter into any “conference, 
agreement, alliance or treaty tvith any king, prince or State,'' or of 
entering into any treaty, confederation or alliance" with either of 
the other States, without the consent of the United States? What 
kind of sovereignty is that which surrendered forever the right to lay 
imposts or duties which might interfere with treaties made by the 
United States or proposed by Congress, to keep troops or vessels of 
war except such as may be deemed necessary by Congress for the de¬ 
fense of such State? What kind of sovereignty does a State possess 
which surrenders forever ii?> right to “engage in war” unless with 
the consent of the United States, or in actual or apprehended inva¬ 
sion, and then only until the United States could be consulted? 
Of what character is that sovereignty which renounced forever its 
power to grant commissions to any ships or vessels of war, and letters 
of marque and reprisal, only after a declaration of war by the United 
States, and subject to its restriction? 

I have briefly shown that, from the commencement of the Revolu¬ 
tion down to the adoption of the xkrticles of Confederation, and from 
that period until the adoption of the Federal Constitution, at no 
time did any of the colonies or States, as either, for one moment ever 


[13] 


obtain or possess any of that sovereignty which they were so am¬ 
bitious to assume and so careful to “re/'afw.” 

We now come to that period when, after the adoption of the Articles 
of Confederation and the acknowledgment of the independence of 
the United States by the mother country, it became necessary to in¬ 
augurate civil government for the people of the whole country, in a 
condition of peace^ and to establish upon permanent bases, by treaty 
and otherwise, such relations with foreign powers as were by the 
principles of international law" our recognized right among the great 
powers of the earth. 

Before the adoption of the Articles of Confederation, the people 
of the States had as yet in no instance adopted State constitutions. 
The local governments, so far as they existed, w'ere but a continu¬ 
ation, in each case, of the limited powers exercised as colonies of 
Great Britain, which it would be absurd at this day to claim were 
sovereign, when their own history demonstrates that even what 
powers they did possess wmre strictly confined to internal police, under 
complete subjection to the British Parliament and the governors of 
each colony, w"ho represented the British Government. It is true, 
however, that there was at this period a party who desired to estab¬ 
lish, not a national government but a confederation of independent 
States, who, at the period of the adoption of the Articles of Confed¬ 
eration, strongly opposed the surrender of the powers of sovereignty 
therein defined, but who were overborne by the necessities of the 
time and the urgent demand for a government of sufficient strength 
to carry the people successfully through the struggle for indepen¬ 
dence. Soon after the termination of the War of the Bevolution, it 
became apparent that the powders vested in the General Government 
by the Articles of Confederation were inadequate, and that the unity 
which existed between the States during the wair had resulted rather 
from the pressure of circumstances than from any authority of the 
General Government. 

So universal was the conviction that the public wmlfare required a 
government of more extensive powders, that in May, 1787, a conven¬ 
tion, composed of delegates from all the States in the Union, except 
Rhode Island, assembled at Philadelphia to take the subject into 
consideration. It continued its deliberations with closed doors until 
the 17th of the following September, when the Federal Constitution 
was promulgated. The convention resolved, “That the Constitution 
be laid before the United States in Congress assembled, and that it 


[14] 


is the opinion of this convention that it should afterwards be sub¬ 
mitted to a convention of delegates, chosen in each State by the peo¬ 
ple thereof, for their assent and ratification/’ 

In conformity to the recommendation of the Convention, Con¬ 
gress, on the 28th of the same month, passed a resolution directing 
that the Constitution be submitted to conventions to be assembled 
in the several States. 

In the conventions subsequently assembled, the question of its 
adoption was discussed with great ability, and it is scarcely hazard¬ 
ous to assert that the two contending political schools, which have 
since so often and so seriously agitated the country, for the first 
time assumed organization and form in the contest of that period— 
one party adhering with great tenacity to the principle of a confed¬ 
erated government with limited powers, with the sovereignty of the 
States, and for preserving the Articles of Confederation as the frame¬ 
work upon which any changes should be made which experience 
had shown to be essential; the other in favor of a radical change in 
the principle of government, renouncing the independent sovereignty 
of the States; urging the establishment of a Federal Government, 
to be based upon such grants of power as might be obtained directly 
from the people, making the States completely subservient thereto; 
eschewing State sovereignty, and depositing all powers necessary to 
constitute a sovereign and supreme head in the government of the 
nation. The first party preferred the confederate form, as imper¬ 
fectly expressed in Article II, in the declaration that “each State 
retains its sovereignty, freedom and independence, and every power, 
jurisdiction and right which is not by this confederation expresslv 
delegated to the United States in Congress assembled.” The second 
party preferred the Federal form as expressed in the Federal Con¬ 
stitution. 

Judge Story, in his celebrated work on the Constitution, in speak¬ 
ing of the “decline and fall of the Confederation,”, vol. 1, sec. 264, 
says; 

“They (the colonies) were suddenly brought together, not so 
much by any deliberate choice of a permanant union as by necessity 
of mutual co-operation and support, in resistance to the measures of 
Great Britain. They found themselves, after having assembled a 
general Congress for mutual advice and encouragement, compelled 
by the course of events to clothe that body with sovereign powers in 
the most irregular and summary manner, and to permit them to 
assert the general prerogatives of peace and war, without any pre¬ 
vious compact, and sanctioned only by silent acquiescence of the 


[15] 


people. Under such circumstances each State felt that it was the 
true path of safety to retain all sovereign powers within its own 
control, the surrender of which was not clearly seen under existing 
circumstances to be demanded by an imperious public necessity. 

“Notwithstanding the declaration of the Articles, that the Union 
was to hQ ])erpetual^ an examination of the powers confided to the 
General Government would easily satisfy us that they looked princi¬ 
pally to the existing revolutionary state of things. The principal 
powers respected the operations of a state of war and would be dor¬ 
mant in a state of peace. In short. Congress in peace was possessed 
of but a delusive and shadowy sovereignty, with little more than 
the empty pageantry of office. They were indeed clothed with the 
authority of sending and receiving ambassadors; of entering into 
treaties and alliances; of appointing courts for the trial of piracies 
and felonies on the high seas; of regulating the public coin ; of 
fixing the standard of weights and measures; of regulating trade 
with the Indians; of establishing postoSices; of borrowing money, 
and emitting bills on the credit of the United States ; of ascertaining 
and appropriating the sums necessary for defraying the public ex¬ 
penses, and of disposing of the Western territory; and most of these 
powers required for their exercise the assent of nine States. But 
they possessed not the power to raise any revenue, to levy any taxes, 
to enforce any law, to secure any right, to regulate any trade, or 
even the poor prerogative of commanding means to pay its own 
ministers in a foreign court. They could contract debts, but were 
without the means to discharge them; they could pledge the public 
faith, but were incapable of redeeming it; they could enter into 
treaties, but every State in the Union might disobey them with im¬ 
punity; they could contract alliances, but could not command men 
or money to give them vigor; they could institute courts for felo¬ 
nies or piracies on the high seas, but they had no means to pay 
either the judges or the jurors. In short, all powers which did not 
execute themselves were at the mercy of the States, and might be 
trampled upon with impunity.” 

One of the leading writers addressed the following strong language 
to the public: 

“ By this political compact the United States in Congress assembled 
have exclusive power for the following purposes, without being able 
to execute one of them : They may make and conclude treaties, 
but can only recommend the observance of them; they may appoint 
ambassadors, but cannot defray even the expenses of their tables; 
they may borrow money in their own name on the faith of the 
Union, but cannot pay a dollar; they may coin money, but they 
cannot purchase an once of bullion ; they may make war and deter¬ 
mine what troops are necessary, but cannot raise a single soldier. 
In short, they can declare everything but do nothing.” 

Strong as this language may seem, it has no coloring beyond what 
the naked truth would justify. 


[1C] 


Hamilton speaks, in 1785, on the same subject: ‘‘In a word,” 
says he, “ the Confederation appears to me to be little more than a 
shadow without the substance; and Congress a nugatory body, their 
ordinances being little attended to.” 

The leading defects of the Confederation may be enumerated 
under the following heads: 

In the first place, there was an utter want of all coercive authority 
to carry into effect its own constitutional measures. This of itself was 
sujfficient to destroy its whole ejjiciency as a superintendiug yovern- 
ment, if that may he called a government which possessed no one solid 
attribute of power. 

It has been justly observed, that ‘‘a government authorized to 
declare war, but relying on independent States for the means of 
prosecuting it; capable of contracting debts, and of pledging the 
public iaith for their payment, but depending on thirteen distinct 
sovereignties for the preservation of that fiiith—could only be res¬ 
cued from ignominy and contempt by finding these sovereignties 
administered by men exempt from the passions incident to human 
nature.” 

The fact corresponded wdth the theory. Even during the Kevolu- 
tion, while all hearts and hands were engaged in the common cause, 
many of tho measures of Congress wmi-e defeated by the inactivity of 
the States, and in some instances the exercise of its powers w^ere 
resisted. But after the peace of 1783 such opposition became com¬ 
mon, and gradually extended, its sphere of activity until, in the 
expressive language already quoted, “ the Confederation became a 
shadow without the substance.” 

The Federalist speaks wdth unusual energy on this subject: 

“ The great and radical view in the construction of the Confedera¬ 
tion is in the principle of legislation for States or governments in their 
corporate or collective capacities, and as contradistinguished from the. 
individuals of which they consist. Thongli this principle does not 
run through all the powers delegated (in the Articles of Confedera¬ 
tion) to the Union, yet it pervades and governs those on which the 
efficacy of the rest depend. Except ns to the rule of apportion¬ 
ment, the United States have an indefinite discretion to make re¬ 
quisitions for men and money, but they have no autliority to raise 
either by regulations extending to the individuals of America. I'hc 
consequence of thii.") is, that though in theory their resolutions con¬ 
cerning these objects are laws, constitutionally binding on the mem¬ 
bers of the Union, yet in practice they are mere recommendations, 
which the States can observe or disregard at their option.” 


[ 17 ] 


Again : 

“The concurrence of thirteen distinct sovereignties is requisite, 
under the Confederation, to complete the execution of every im¬ 
portant measure that proceeds from the Union. It has happened, 
as it was to have been foreseen, the measures of the Union have not 
been executed. The delinquencies of the States have step by step 
matured themselves to an extreme, which has at length arrested all 
the wheels of the National Covernment, and brought them to an 
awful stand. Congress at this time scarcely possesses the means of 
keeping up the forms of administration till the States can have time 
to agree upon a more substantial substitute for the present shadow 
of a Federal Grovernment. 

“Congress had no power to exact obedience, or punish disobedience 
to its ordinances. They could neither impose fines nor direct im¬ 
prisonment, nor divest privileges, nor declare forfeitures, nor suspend 
refractory officers. There was in the Confederation no express au¬ 
thority to exercise force; and though it might ordinarily be implied 
as an incident, the right to make such implication was prohibited, 
for each State was to ‘retain every power, right and jurisdiction not 
expressly delegated to Congress.’ The consequence naturally was, 
that the resolutions of Congress were disregarded, not only by States 
but by individuals. ^ ^ ^ 

“ But a still more striking defect was the total want of power to 
lay and levy taxes, or to raise revenue to defray the ordinary ex¬ 
penses of government. The whole power confided to Congress under 
this head, was ‘the power to ascertain the sums necessary to be 
raised for the service of the United States,’ and to apportion the 
quota or proportion on each State; but the power was expressly 
reserved to the States to lay and levy the taxes^ and of course the 
time, as well as the mode of payment, was extremely uncertain. 
The evils resulting from this source, even during the Bevolutionary 
war, were of incalculable extent, and but for the good fortune of 
Congress in obtaining foreign loans, it is far from being certain that 
they would not have been fatal. 

“ But this consideration sinks into utter insignificance, in compari¬ 
son with others. Bequisitions were to be made upon thirteen 
independent States, and it depended upon the good will of the Legis¬ 
lature of each State whether it would comply at all. * * 

Indeed, from the moment that the peace of 1783 secured the country 
from the distressing calamities of war, a general relaxation took 
place, and many of the States found apologies for their gross neglect 
in evils common to all. Many solemn appeals were from time to 
time made by Congress to the States, but they were attended with 
no salutary effect. * The Treasury was empty; the 

credit of the Confederacy was sunk to a low ebb; the public bur¬ 
dens were increasing ; the public faith was prostrate. * * 

“On the 12th of February, 1783, Congress resolved that the es¬ 
tablishment of permanent and adequate funds, or taxes or duties 


[18] 


throughout the United States, were indispensable to do justice to the 
public creditors. A subsequent resolution was passed, asking power 
to levy certain specific duties, and a duty of five per cent, ad valorem 
on all other imported articles. This measure was recommended by 
Washington, in a circular letter addressed to the Governors of the 
several States, in which he stated that in his opinion there were four 
things essential to the well being and existence of the United States 
as an independent power, viz : First, an indissoluble union of the 
States under one federal head. Second, a sacred regard to public 
justice. Third, the adoption of a proper peace establishment. 
Fourth, the prevalence of a pacific and friendly disposition of the 
people of the United States towards each other. Subsequently, in 
urging the adoption of regulations necessary for the protection of 
American citizens, he used the following language: ‘America must 
appear in a very contemptible point of view to those with whom she 
was endeavoring to form commercial treaties, without possessing the 
means of carrying them into effect. They must see and feel that 
the Union of the States are individual or sovereign, as best suits 
their purposes; in a word, that we are a nation to-day and thirteen 
to-morrow. Who icill treat with us on siich termsV 

“ The difficulty of enforcing even the obligations of the treaty of 
peace of 1783 was a most serious national evil. Great Britain made 
loud complaints of infractions thereof on the part of the several 
States, and demanded redress. She refused, on account of these al¬ 
leged infractions, to surrender up the western forts, according to the 
stipulations of that treaty, and the whole Confederacy was threatened 
with the calamities of Indian depredations on the whole of our west¬ 
ern borders, and was in danger of having its public peace subverted 
through its mere inability to enforce the treaty stipulations. The 
celebrated address of Congress, in 1787, to the several States on this 
subject, is replete with admirable reasoning, and contains melancholy 
proofs of the utter inefficiency of the Confederation, and of the dis¬ 
regard by the States of the provisions of that treaty.” 

There were numerous other defects seriously urged against the 
Confederation, among which were the following: 

1. The principle of regulating the contributions of the several 
States into the national treasury by quotas. 

2. The want of a guaranty to protect each State against insurrec¬ 
tions and usurpations. 

3. The want of a direct power to raise armies. 

-1. The right of equal representation among the States, aceording 
to wealth and population. 

5. The organization of the whole powers of the Government in a 
single assembly, without an executive or judicial department, as dis¬ 
tinct from the legislative. 

6. The want of an executive power in the General Government, to 


[19J 


issue paper money, and thus prevent the inundation of the country 
with a base currency. 

7. The want of a judicial power, co-extensive with the powers of 
the General Government. 

The Federalist, in speaking of this last defect, says: 

“ Laws are a dead letter without courts to expound and define 
their true meaning and operation. The treaties of the United States, 
to have any force at all, must be considered as a part of the law of 
the land. Their true import must, like other laws, be ascertained by 
judicial determinations. To produce uniformity in these decisions, 
they must, as a last resort, be submitted to one supreme tribunal. 
To avoid confusion, which would unavoidably result from the contra- 
[ dictory decisions of a number of independent judicatories, all nations 
i have found it necessary to establish one tribunal paramount to the 
rest, possessing a general superintendence, and authorized to settle 
! and declare, in the last resort, a uniform rule of justice. * * 

“ The treaties of the United States, under the present Confedera¬ 
tion, are liable to the infractions of thirteen different Legislatures, and 
as many different courts of final jurisdiction, acting under the author¬ 
ity of those Legislatures. The faith, the reputation and the peace of 
the whole Union are thus continually at the mercy of the prejudices, 
the passions and the interests of every member of which these States 
are composed. Is it possible, under such circumstances, that foreign 
nations can either respect or confide in such a government ? * * 

The last defect, which seems worthy of consideration, is that the Con¬ 
federation never had a ratification of the people. 

“ In relation to the subject of these defects in the Confederation, Mr. 
Jefferson uses, on page 444 of volume 4 of his correspondence, the 
following language: 

‘ The alliance between the States, under the old Articles of Con¬ 
federation, for the purpose of joint defense against the aggressions of 
Great Britain, was found insufficient, as treaties of alliance generally 
are, to enforce compliance with their mutual stipulations ; and these 
once fulfilled, that bond was to expire of itself, and each State to 
become sovereign and independent in all things.’ ” 

“ This seems to have been the extraordinary opinion of Mr. Jeffer¬ 
son, that the Confederation was to cease with war, notwithstanding the 
express provision contained in the Articles themselves — that the Union 
thereby created '‘should he perpetual' 

“ Whatever may be thought as to some of these enumerated defects, 
there cannot be a doubt that others of them went to the very marrow 
and essence of government. There had been different parties in the 
several States, hostile or friendly to the existence of a Federal Govern¬ 
ment. The former would naturally cling to the State Governments 
with an unabated zeal, and deem the least possible delegation of 
power to the Union sufficient, with which it could creep on in a semi- 
animated state. The latter would as naturally desire that the powers 


[ 20 ] 


of the General Government should have a real, and not merely a 
suspended vitality. But each party must have felt that the Con¬ 
federation had at last totally failed as an effectual instrument of 
government; that its glory was departed, and its days of labor done; 
that it stood the shadow of a mighty name; that it was seen only as 
a decayed monument of the past, incapable of any enduring record; 
that the steps of its decline were numbered and finished, and that it 
was now passing that very door of the common sepulcher of the dead, 
whose inscription is, '‘Niilla vestigo restrorsum.^ 

In this state of things. Commissioners were appointed by the Legis¬ 
latures of Virginia and Maryland, early in 1785, to form a compact 
relative to the navigation of the rivers Potomac and Pocomoke and 
the Chesapeake Bay; but, for want of sufficient powers to accomplish 
the objeets of their appointment, nothing definite was accomplished. 
Other efforts, having for their object the regulation of the trade of 
the United States, were soon after made, but from similar causes 
failed in obtaining any result, until, finally, on the 21st of February, 
1787, a resolution was passed by Congress, recommending a Conven¬ 
tion to meet at Philadelphia on the second Monday of May following, 
“for the purpose of revising the Articles of Confederation, and report¬ 
ing to Congress, and the several Legislatures, such alterations and 
provisions therein as shall, when agreed to in Congress, render the 
Constitution adequate to the exigencies of government and the pre¬ 
servation of the Union.” 

The Convention assembled at the time and place appointed. 
Twelve States were represented. Bhode Island alone declined to 
appoint. After protracted deliberation, the plan of the present 
Constitution was finally, on the 17th of September, 1787, adopted, 
and by resolution directed to be laid before “ the United States in 
Congress assembled,” and the opinion declared that it should after¬ 
wards be submitted to a Convention of Delegates chosen in each 
State, by the people thereof, under a recommendation of its Legisla¬ 
ture, for their assent and ratification. The Convention at the same 
time addressed a letter to Congress, in which they said: 

“ It is obviously impracticable in the Federal Government of these 
States to secure all rights of independent sovereignty to eacA, and 
yet provide for the interest and safety of all. Individuals entering 
society must give up a share of liberty to preserve the rest. The 
magnitude of the sacrifice must depend as well on situation and cir¬ 
cumstances as on the object to be attained. It is at all times difficult 
to draw with precision the line between those rights which must be 
surrendered and those which may be reserved; and on the present 


[ 21 ] 


occasion the difficulty was increased by a difference among the sev¬ 
eral States as to their situation, extent, habits and particular interests. 
In all our deliberations on this subject we kept steadily in view that 
which appears to us the greatest interest of every true American : 
the consolidation of our Union^ in which is involved our prosperity, 
felicity, safety—perhaps our national existence. This important 
consideration, seriously and deeply impressed on our minds, led each 
State in Convention to be less rigid in points of inferior magnitude 
than might have been otherwise expected; and thus the Constitution 
which we now present is the result of a spirit of amity, and of that 
mutual deference and concession which the peculiarity of our political 
situation rendered indispensable'^ 

THE ORIGIN OF PARTIES IN THE CONSTITUTIONAL CONVENTION. 

The history of the proceedings of the Convention which adopted 
the Federal Constitution, shows clearly the existence of two parties, 
representing antagonistic political theories, supported on both sides 
with great ability. One was in favor of the principle of independent 
sovereignty in the States, as attempted to be expressed in the Articles 
of Confederation, recognizing the doctrine of citizenship, and conse¬ 
quent allegiance with reference only to State Governments, and 
yielding only such power to such General Government as might be 
established, as would be necessary to establish a Confederacy of in¬ 
dependent States. The other was in favor of a central, consolidated 
government^ which should embody in itself all the attributes of a 
sovereign, independent nation, in opposition to the expressed doc¬ 
trine of the Articles of Confederation, recognizing the doctrine of 
citizenship and consequent allegiance with reference to the central 
or federal power; in favor of conferring thereon, and prohibiting to 
the States, in whatever constitution might be adopted, in direct and 
specific terms, all such essential attributes of sovereignty as might 
be found necessary to establish a nation. And the positions of the 
delegates composing that Convention was not in the least affected by 
the latitude or section from whence they came, either as to North or 
South, nor as to any bearing that the settlement of these great ques¬ 
tions might have had upon the institution of slavery. In all the 
prolonged debates of that great body, neither of these matters were 
ever presented in discussion, or even alluded to, by any member; but 
the question was on the comparative power in the representation to 
be obtained in the proposed National Legislature; the larger States 
insisting upon the rule of representation according to population : 
the smaller ones in favor of preserving the equality of representation 
by States, without any regard whatever to wealth, territory or popu- 



[ 22 ] 


lation; and this complexion of the matter presented itself throughout, 
with occasional exceptions, it is true, as to the position of certain 
States and particular delegates. 

The great issue which was before the Convention, which employed 
its time and monopolized its deliberations, and which was finally de¬ 
termined in the adoption of the Federal Constitution, was whether 
the great principle of impartial representation of the individuals who 
composed the whole people should be overthrown by the rule of rep¬ 
resentation by States, based upon the dogma of their separate and 
independent sovereignty. 

On the 29th of May, 1787, a plan of government was submitted by 
Mr. Randolph, of Virginia, which was subsequently known in the 
debates as the “Virginia Plan,” providing for separate legislative, 
exeeutive and judicial departments; the legislative to be composed of 
two bodies; the first (or House) to be elected directly by the people; 
the second (or Senate) to be elected by the first. This proposition 
was subsequently changed by the committee, making the second body 
(or Senate) elective by the Legislatures of the several States. 

In proof and explanation of these facts, I quote from the cele¬ 
brated work of the Hon. Luther Martin, of Maryland, entitled the 
“Secret Debates of the Federal Convention,” Mr. Martin being at 
the time a member of that body, and a most strenuous and persistent 
opponent of the proposed change in the Government. The work of 
Mr. Martin, which was by him subsequently presented to the Legis¬ 
lature of Maryland, and addressed to the Speaker of that body, as a 
report of the proceedings of the Convention, contains, on page 12, 
the following language: 

“ You have heard, sir, the resolutions which were brought forward 
by the honorable member from Virginia. Let me call the attention 
of this House to the conduct of Virginia. When our Confederation 
was entered into, that State proposed and obstinately contended, con¬ 
trary to the sense of, and unsupported by the other States, for an 
inequality of suffrage, founded on numbers, or some such scale which 
would give her and certain other States influence in the Union over 
the rest. Pursuant to that spirit which characterized her, and uniform 
in her conduct, the very second resolve is calculated expressly for 
that purpose, to give her a representation proportional to her num¬ 
bers, as if the want of that was the principal defect in our original 
system, and this alteration the great means of remedying the evils we 
had experienced under our present government. * 

“ The object of Virginia and other large States, to increase their 
power and influence over the others, did not escape observation. 


[23J 


The subject, however, was discussed with great coolness in the com¬ 
mittee of* the whole House, (for the Convention had resolved itself 
into a committee of the whole to deliberate upon the propositions 
submitted by the honorable member from Virginia.) * * 

“ While these resolves were the subject of discussion in the com¬ 
mittee of the whole House, a number of the members who disapproved 
of them were preparing another system; such as they thought more 
conducive to the happiness and welfare of the States.” 

The most important of these resolutions, relating to the present 
question, are the following : 

Resolved^ That it is the opinion of this Committee that a National 
Government ought to be established, consisting of a Supreme Legisla¬ 
ture, Judiciary and Executive. 

Resolved^ That the Legislature ought to consist of two houses. 

Resolved^ That the members of the first branch of the National 
Legislature ought to be elected by the people of the several States, 
for the term of three years, to receive fixed stipends, by which they 
may be compensated for the devotion of their time to public service, 
to be paid out of the National Treasury^ &c. * * * 

Resolved^ That the members of the second branch of the Legisla¬ 
ture ought to be chosen by the individual legislatures, * * 

to hold their office for seven years. ****?{« 

Resolved^ That the National Legislature ought to be empowered 
to enjoy the legislative rights vested in Congress by the Confedera¬ 
tion, and moreover to legislate in all cases to which the separate 
States are incompetent, or in which the harmony of the United 
States may be interrupted, by the exercise of individual legislatures; 
to negative all laws passed hy the several States, contravening in the 
opinion of the Legislature of the United States, the articles of Union, 
or any treaties subsisting under the authority of the Union. 

Resolved, That the right of suffrage in the first branch ought 7 iot 
to be according to the rule established in the Articles of Confedera¬ 
tion, but according to some equitable rate of representation, namely: 
in proportion to the whole number of white and other free citizens, 
and inhabitants of every age, sex and condition. * * * 

Resolved, That the right of suffrage in the second branch of the 
National Legislature ought to be according to the rule established 
in the first. 

Resolved, That the jurisdiction of the National judiciary shall 
extend to cases which respect the collection of the national revenue; 
cases arising under the laws of the United States, impeachments of 
any national officer, and questions which involve the national peace 
and harmony. 

‘•These propositions,” continues Mr. Martin, “were acceded to by 
a majority of the members of the committee—a system by which the 
large States were not only to have an inequality of suffrage in the first 
hra/nch, hut also the same inequality in the second hranch, or Senate. 


[24] 


However, it was not designed that the second branch should consist 
of the same number as the first. It was proposed that the Senate 
should consist of twenty-eiglit members, formed on the following scale: 
Virginia to send five, Pennsylvania and Massachusetts each four. 
South Carolina, North Carolina, Maryland, New York and Con¬ 
necticut two each, and the States of New Hampshire, Ehode Island, 
Jersey, Delaware and Georgia each one. 

“ Upon this plan the three larger States, Virginia, Pennsylvania 
and Massachusetts, would have thirteen Senators out of twenty- 
eight—almost one-half of the whole number. Fifteen Senators were 
to be a quorum to do business ,* these three States would therefore 
have thirteen out of that quorum, having this inequality in each 
branch of the Legislature. * * * 

“ This system of slavery,” continues the writer, “ which bound 
hand and foot the ten States in the Union, and placed them at the 
mercy of the other three, and under the most abject and servile sub¬ 
jection to them, was approved by a majority of the members of the 
Convention, and reported by the committee. 

“ On this occasion, the house will recollect, the Convention 
was resolved into a committee of the whole—of this committee Mr. 
Graham was chairman. The Honorable Mr. Washington was then 
on the floor, in the same situation with the other members of the 
Convention at large, to oppose any system he thought injurious, or 
10 propose any alterations or amendments he thought beneficial. To 
these propositions, so reported by the Committee, no oppostiin was 
given by that illustrious personage, or by the President of the State 
of Pennsylvania. They both appeared cordially to approve them, 
and to give them their hearty concurrence. * * 

“ At length, sir, after every argument had been exhausted by the 
advocates of equality of representation, the question was called, when 
a majority decided in favor of the inequality, Massachusetts, Penn¬ 
sylvania, Virginia, North Carolina, South Carolina and Georgia voting 
for it; Connecticut, New York, New Jersey and Delaware against it; 
Maryland divided.” 

It will be remembered that this vote was taken upon the proposi¬ 
tion embraced in the seventh resolution, that the right of suffrage 
in the first branch of the National Legislature ought not to be ac¬ 
cording to the rule established in the Articles of Confederation, but 
according to some equitable rate of representation, namely, in propor¬ 
tion to the whole number of white, and other free citizens and inhab¬ 
itants, of every age, sex and condition, &c. And, to the surprise of 
the distinguished author, not only the States of Massachusetts and 
Pennsylvania, but also Virginia, North Carolina and Georgia, and 
even the illustrious President of the Convention, George Washington, 
voted for a rule of representation, in the first branch, upon the basis 
of population, in opposition to that of representation by States; and 


[25J 

this, too, “after every argument had been exhausted” by the advo¬ 
cates of the latter system. 

The writer further shows, that on “the next day the question came 
on with respect to the inequality of representation in the second 
branch; but little debaate took place; the subject had been ex¬ 
hausted in the former question. On the votes being taken, Massa¬ 
chusetts, Pennsylvania, Virginia, North Carolina and South Carolina 
voted for the inequality; Georgia divided.” 

Thus we see from the record of history that the great States of 
Massachusetts and South Carolina, had in older times, as in latter 
days, walked arm and arm and stood side by side for the great prin¬ 
ciple of popular government. But while Massachusetts has stead¬ 
fastly adhered to the principles she then sustained—has freely given 
forth the treasure and sacrificed the best blood of thousands of her 
children to defend and perpetuate that sacred temple whose founda¬ 
tions were laid and cemented in the blood of the whole people. 
South Carolina has proved basely recreant to the sacred pledge and 
principles of her fathers, and in carnage and desolation vainly striven 
to strike down that sacred edifice which had been raised through so 
much sacrifice by her patriotic sires. 

Again, Mr. Martin, in reciting the argument presented to the Con¬ 
vention by the advocates of State sovereignty, says: 

“ It was urged that the government we were forming was not in 
reality a federal, but a national governmentj; not founded upon the 
principle of the preservation, but the abolition or consolidation of 
all State governments. * * That we had not been sent to form a 

government over the inhabitants of America] considered us individ¬ 
uals—that as individuals they were all subject to their respective State 
governments. * * That the system of government we were en¬ 

trusted to prepare was a government over these thirteen States, but 
that in our proceedings we adopted principles, which would be right 
and proper only on the supposition that there were no State govern¬ 
ments at all, but that all the inhabitants of this extensive continent 
were in a state of nature and without government. That, accordingly, 
the new system proposes the legislature to consist of two branches; 
the one to be drawn from the people at large^ the other to be chosen 
in a more select manner as a check upon the first. In its very intro¬ 
duction declared to he a compact between the people of the United 
States as individuals^ and it is to be ratified by the people at large in 
their capacity as individuals. * ^ ^ ^ * 

“ Whereas, it was urged that the principle on which a federal gov¬ 
ernment over States ought to be constructed and ratified^ are the re¬ 
verse ; that instead of the legislature consisting of two branches^ one 
branch was sufiicient, whether examined by the dictates of reason or 


[ 26 ] 


the experience of ages. That the representation, instead of being 
drawn from the people at large, as individuals^ ought to be drawn 
from the States as States in their sovereign capacity. 

“ It was further said, that in a federal government over States 
equally free^ sovereign and independent^ every State ought to have an 
equal share in making the federal laws or regulations; in deciding 
upon them and in carrying them into execution, neither of which was 
the case in this system. * * That in the whole system there was 

but one federal feature—the appointment of the Senators by the 
States in their sovereign capacity, that is, by their Legislatures, and 
the equality of suffrage in that branch ; but it was said this feature 
was only federal in appearance.” 

After an exhaustive argument upon each preceding section, the 
able author of the report presents his objections to the clause de¬ 
fining treason against the United States, in the following terms : 

“ By the third section of this article it is declared that treason 
against the United States shall consist in levying war against them, 
or in adhering to their enemies, giving aid and comfort. 

“ By the principles of the American Bevolution, arbitrary power 
may and ought to be resisted, even by arms if necessary. The time 
may come when it shall be the duty of a State, in order to preserve 
to the sword ; in which case the proposed form of government de- 
itself from the oppression of the General Government, to have recourse 
dares, that the State and every one of its citizens who act under its 
authority, are guilty of a direct act of treason; reducing by this pro¬ 
vision the different States to this alternative: that they must tamely 
and passively yield to despotism, or their citizens must oppose it at 
the hazard of the halter, if unsuccessful ; and reducing the citizens 
of the State, which shall take arms, to a situation in which they must 
be exposed to punishment. Let them act as they will, since, if they 
obey the authority of their State government, they will be guilty of 
treason against the United States; if they join the General Govern¬ 
ment they will be guilty of treason against their own State. To save 
the citizens of the respective States from this disagreeable dilemma, 
and to secure them from being punishable as traitors to the United 
States, when acting expressly in obedience to the authorities of their 
own State, I wished to have obtained, as an amendment to the third 
section the, following clause: 

“ ‘ Provided, That no act or acts done by one or more of the States 
against the United States, under the authority of one or more of the 
said States, shall be deemed treason or punished as such ; but in 
case of war being levied by one or more of the States against the 
United States, the eonduct of each party towards the other, and their 
adherents respectively, shall be regulated by the laws of war and of 
nations.’ 

“ But (continues Mr. Martin) this provision was not adopted by 
the Convention, being too much opposed to the great object of many 


[27] 


of the leading members, which was by all means to leave the States 
at the mercy of the General Government^ since they could not succeed 
in their entire abolition.” 

Before leaving the remarkable work from which these quotations 
have been made, it may not be unimportant to add a few more which 
relate more properly to a general view of the subject than to particular 
points thus far presented. On page 83 the author presents and 
urges the following propositions, which may somewhat surprise those 
of the same political school of the present day: 

“ That in originally forming a constitution, it was necessary that 
every individual should agree to it, to become bound thereby, and 
that when once adopted, it could not be binding by consent, unless 
by the consent of every individual who was a party to the original 
agreement; that in forming our original Federal Grovernment, every 
member of that government—that is, each State —expressly consented 
to it; that it is a part of the compact made and entered into in the 
most solemn manner, and there should be no dissolution or alteration 
of the Federal Government without the consent every State. Satis¬ 
fied of the truth of these propositions, and not holding ourselves at 
liberty to violate the compact which this State had solemnly entered 
into with the others, by altering it in a dilFereut manner from that 
which by the same contract is provided and stipulated, a number of 
members, among those the delegation of this State, opposed the rati¬ 
fication of this system, in any other manner than by the iinanimous 
consent and agreement of all the States. 

^ Jjc 

“ I was also of the opinion that the States, considered as States in 
their political capacity, or as sovereignties, are entitled and only en¬ 
titled originally, to agree upon the form of and submit themselves 
to a federal government. ^ ^ ^ Nor do these positions in the 

least interfere with the principle that all power originates from the 
people, because when once the people have exercised their power in 
estahlishing and forming themselves into a State government^ it never 
devolves hack to them, nor have they a right to resume or again to ex¬ 
ercise that power, until such events take place as will amount to a 
dissolution of their State government.” 

After the adoption of the Federal Constitution by the Conven¬ 
tion, and the recommendation of Congress in favor of its ratification 
by the people, in the conventions subsequently assembled, the expe¬ 
diency of adopting it was discussed with great ability and eloquence; 
the wisdom, genius and patriotism of the nation were called into 
action, and every possible question involved in the great changes 
proposed in that instrument was most thoroughly exhausted. 

Among the ablest opponents to its ratification was Patrick Henry, 
of Virginia, who, in a speech delivered before the Convention of that 


[28] 


State, on the 4th of June, 1788, after an eloquent exordium upon 
the condition of the country, and other matters of general character, 
said: 

“ And here I would make this inquiry of those worthy charac¬ 
ters who composed a part of the late Federal Convention. I am sure 
they were fully impressed with the necessity of forming a great con¬ 
solidated government, instead of a Confederation. That this is a con¬ 
solidated government is demonstrably clear, and the danger of such 
a government is to my mind very striking. I have the highest ven¬ 
eration for those gentlemen, but, sir, give me leave to demand what 
right had they to say, ‘ IFe, the people^' instead of ‘ We, the States ?’ 
States are the characteristics and the soul of a Confederation. If the 
States be not the agents of the compact, it must he one great consoli¬ 
dated national government of the people of all the States. * * * 

America on a former occasion had put the utmost confidence in them. 
* * But, sir, on this great occasion, I would demand the cause 

of their conduct, even from that illustrious man who saved us by his 
valor ; I would have a reason for his conduct.” 

On the following day the same speaker said : 

“ I rose yesterday to ask a question which arose in my mind. 
When I asked that question I thought my interrogation was obvi¬ 
ous. The fate of this question and of America may depend on this. 
Have they said, ‘We the States?’ Have they made a proposal of a 
compact between States ? If they had, this would be a Confedera¬ 
tion. It is otherwise, most clearly, a consolidated government. The 
question turns, sir, upon that poor little thing, the expression, ‘ We 
the people,’ instead of the States of America. I need not take much 
pains to show that the principles of this system are extremely per¬ 
nicious, impolitic and dangerous. Is this a monarchy like England, 
a compact between prince and people, with checks on the former to 
secure the liberties of the latter ? Is this Confederacy, like Holland, 
an association of a number of independent States, each of which re¬ 
tains its individual sovereignty f It is not a democracy wherein the 
people retain all their rights securely? Had these principles been 
adhered to we should not have been brought to this alarming transi¬ 
tion from a confederacy to a consolidated government. * * 

Here is a revolution as radical as that which separated us from Great 
Britain ; it is as radical, if in this transition our rights and privileges 
are endangered and the sovereignty of the States relinquished. And 
can we not plainly see that this is actually the case ? * * * 

“ Are the people in their aggregate capacity the proper persons to 
form a Confederacy ? This ought to depend upon the legislatures, 
people having never sent delegates to make any proposition of chang¬ 
ing the government. Yet, I must say, at the same time, that it was 
made on grounds the most pure, and^ perhaps, I might have been 
brought to consent to it, so far as the change of government; but there 
is one thing in it I never would agree to; I mean the ehanging it into 
a consolidated government, which is so abhorrent to mind.” 


These extracts might be extended to an almost indefinite length, 
but they of themselves are sufficient to prove, beyond the possibility 
of a doubt or cavil, that both in the Federal Convention, which 
adopted, and in the State Conventions, which ratified the Constitu¬ 
tion, the whole scope and character of that instrument was most 
throuoghly analyzed in the exhaustive arguments of the great men of 
that day. 

The preceding arguments, so far only of the opponents of the Con¬ 
stitution, are at this time presented, not with a view of determining 
the merits of the questions therein discussed, but for the purpose 
alone of showing that the doctrines of that political school which 
maintained an independent sovereignty of the States as a principle to 
be perpetuated in this government, were most thoroughly, ably and 
persistently urged, and in the final settlement of the controversy by 
the adoption of the Federal Constitution, most unequivocally and 
forever condemned. 

As a test of the sense of the Convention, Mr. Martin, who de¬ 
nounced the plan of the Committee which reported in favor of a 
Constitution as one of “ inequality^ because, upon the principle of 
popular representation, instead of representation of States, the larger 
States, in consequence of their greater population, would exceed the 
smaller ones ” in representation—recites that, “after every argument 
had been exhausted by the advocates of equality of representation, 
the question was called, [in convention upon the adoption of that 
report,] when a mq/c>n*/y decided in favor of what he styled inequality — 
Massachusetts, Pennsylvania, Virginia, North Carolina, South Caro¬ 
lina and Georgia voting for it; Connecticut, New York, New Jersey 
and Delaware against it, and Maryland divided.” He also says : “ It 
will be remembered that this vote was taken upon the proposition 
embraced in the seventh resolution : ‘ That the right of suffrage in the 
first branch of the National Legislature, ought not to be according 
to the rule established in the Articles of Confederation, but according 
to some equitable vote of representation, namely: in proportion to 
the whole number of lohite and other free citizens, and inhabitants of 
every age, sex and condition,’ ” &c., and to the surprise of Mr. Mar¬ 
tin, not only the States of Massachusetts and Pennsylvania, but also 
Virginia, North Carolina, South Carolina and Georgia, and even the 
illustrious President of the Convention, George Washington, voted 
for the rule of representation in the first branch upon the basis of 
j)opulation, in opposition to that of representation hy States. The 


[30] 


writer further shows that on the next day the question came on with 
respect to the inequality of representation in the second branch ; but 
little debate took place—the subject had been exhausted in the former 
question. On votes being taken, Massachusetts, Pennsylvania, Vir¬ 
ginia, North Carolina and South Carolina voted for inequality ; 
G-eorgia divided. 

By this account of the action of the Constitution Convention, it 
will be seen that at that day the doctrine of the indejDcndent sover¬ 
eignty of States was, after exhausting all argument upon the subject, 
most emphatically condemned by that body, and in the plan of gov¬ 
ernment reported and adopted, not only the House of llepresenta- 
tives but the United States Senate was to be based upon q^opular rep¬ 
resentation; and of the Southern States, Virginia, North Carolina and 
South Carolina voted for it, and G-eorgia equally divided. So strong 
was the sentiment of that body in favor of popular representation, 
and the consequent extinction of State representation in the national 
councils, that even South Carolina voted to obliterate State represen¬ 
tation in the National Senate, and in favor of apportioning the num¬ 
ber of Senators according to the population of the several States. 
Subsequently, it is true, as a concession to the smaller States, the 
present plan of two Senators from each State was adopted. 

The seventh and eighth resolutions clearly and unequivocally ex¬ 
pressed the sense of the Convention as to the principle which should 
underlie the whole structure of the government: “ That the rio-ht of 
suffrage in the first and second branches of the Congress ought not^ 
to be according to the rule established in the Articles of Confedera¬ 
tion, but according to the whole number of white and other free citi¬ 
zens and inhabitants,” &c. Thus placing the government upon the 
shoulders of the people instead of upon the supposed sovereignty of 
the States ; renouncing in direct and positive words the rule of State 
representation, as recognized in the Articles of Confederation, and 
the Constitution embodying that principle was reported and subse¬ 
quently adopted, not, as claimed by the States, in the form of a com¬ 
pact between them, but by the people of the United States in their 
capacity as citizens of the United States, uncontrolled and unaided 
by any action on the part of the States; for it will be remembered 
that Patrick Henry, in speaking before the Convention of Virginia 
in opposition to its adoption, urged as his most potent argument that 
the preamble, “We the people do ordain and establish this Constitu- 
.tion,” instead of we the States, plainly expressed the character of the 


[31] 


Goverument to be ‘‘ a cousolidated Union, and destroying, in the 
very terms of the preamble, the last vestige of the sovereignty of the 
States.” Mr. Martin, in his report, dwells upon the same objection, 
and insists that the Convention exceeded the powers given, in under¬ 
taking to make a change so radical in its character; that the Con¬ 
vention had power only to form a government of States and not of 
individuals; that the very introduction declares it to be a compact 
between people of the United States as individuals^ and that it is 
to be ratified by the people at large, in their capacity as individuals. 

In latter days it is contended that treason against the United States 
cannot be committed, because the States are sovereign; that the 
citizen is a citizen of his State, and that as such citizen he owes his 
allegiance to his State beca'use it is sovereign; but the distinguished 
member from Maryland, Mr. Martin, whose reputation as a jurist has 
long since become national in its character, held a different opinion, 
and, being of the same political school as the gentlemen who now 
insist upon this dogma, they cannot very consistently demur to his 
authority: 

“ By the third section of this article,” says the distinguished man, 
it is declared that treason against the United States shall consist in 
levying war against them, or in giving aid and comfort to their ene¬ 
mies,” and that, “by the principles of the American Kevolution, 
arbitrary power ought to be resisted, even by arms if necessary;” 
and “ the time may come when it shall be the duty of a State, in 
order to preserve itself from oppression of the General Government, 
to have recourse to the sword, in which case the proposed form of 
government declares that the State, and everyone of its citizens who act 
under its authority^ are guilty of a direct act of treason; reducing by 
this provision the different States to the alternative that they must 
tamely and passively yield to despotism, or their citizens must oppose 
it at the hazard of the halter, if unsuccessful. * * To save 

the citizens of the States from this disagreeable dilemma, * * I 

wished to have obtained, as an amendment to the third section, the 
following clause: 

“‘Provided, That no act or acts, done by one or more of the States 
against the United States, or by any citizen of any one of the United 
States, under the authority of one or more of the said States, shall 
be deemed treason^ and punished as such; but in case of war being 
Idyied by one or more of the States against the United States, the 
conduct of each party towards the other, and their adherents respect¬ 
ively, shall be regulated by the laws of war and of nations.’ ” 

“ But,” says Mr. Martin, “this provision was not adopted by the 
Convention.” So we see the Convention refused to permit the citizen 
to commit treason under cover of obedience to the mandates of his 


[32] 


State, but on the contrary determined to hold him personally respon¬ 
sible for his acts in his capacity as a citizen of the United States, 
owing his allegiance to the National Government, and not to his State, 
and that the great principle of the individual responsibility of the 
citizen to the Federal Government, which was recognized by the Con¬ 
vention as the corner-stone of the new political edifice they w^ere 
erecting, should be carried in its minute details, even to the punish¬ 
ment of treason, that no ingenious sophistry of the State sovereignty 
school should have the slightest countenance in the Constitution of 
the country. 

In recognition of this principle, the Constitution contains in the 
preamble the following clear and explicit language; 

“ We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquility, provide 
for the common defense, promote the general welfare, and secure the 
blessings of liberty to ourselves and our posterity, do ordain and 
establish this Constitution for the United States of America.” 

The eighth section of the Constitution declares: 

“ The Congress shall have power to lay and collect taxes, duties, 
imposts and excises; to pay the debts and provide for the common 
defense and general welfare of the United States: but all duties, 
imposts and excises shall be uniform throughout the United States; 

“ To borrow money on the credit of the United States; 

“ To regulate commerce with foreign nations, among the several 
States, and with the Indian tribes; 

“ To establish a uniform rule of naturalization, and uniform laws 
on the subject of bankruptcies, throughout the United States; 

To coin money and regulate the value thereof, and of foreign 
coins, and fix the standard of weights and measures; 

“ To provide for the punishment of counterfeiting the current 
coin and securities of the United States; 

“ To establish post-offices and post-roads ; 

“ To promote the progress of science and useful arts, by securing 
to authors and inventors the exclusive right to their respective 
writings and discoveries; 

“ To constitute tribunals inferior to the Supreme Court; 

“ To define and punish piracies and felonies committed on the 
high seas, and offenses against the laws of nations; 

“ To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water; 

“ To raise and support armies; but no appropriation of money to 
that use shall be for a longer time than two years; 

“ To provide and maintain a navy ; 

“ To make rules for the government and regulation of the land 
and naval forces; 


[33] 


“To provide for calling fortli the militia to execute the laws of 
the Union, suppress insurrections and repel invasions; 

“ To provide for organizing, arming and disciplining the militia, 
and for governing such part of them as may be in the service of the 
United States: reserving to the States respectively the appointment 
of the officers, and the authority of training the militia according to 
the discipline prescribed by Congress. 

“ To make all laws which shall be necessary and proper for car¬ 
rying into effect the foregoing powers, vested by this Constitution 
in the Government of the United States, or in any department or 
officer thereof. 

“No preference shall be given by any regulation of commerce to 
the ports of one State over those of another, nor shall vessels bound 
to one State be obliged to enter, clear or pay duties in another. 

“ The Congress shall have power to dispose of and make all need¬ 
ful rules and regulations respecting the territory or other property 
of the United States. 

“ The President shall be commander in chief of the army and 
navy of the United States, and of the militia of the several States 
when called into the actual service of the United States, ^ 

He shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two-thirds of the Senators present 
concur; and he shall nominate, and by and with the advice and con¬ 
sent of the Senate, shall appoint ambassadors, other public ministers 
and consuls,” &c. 

These arc, in the main, the powers granted by the people to the 
Government in the Federal Constitution, and constitute all the attri¬ 
butes of wvereignty^ necessary to create a sovereign and independ¬ 
ent nation. 

The following are the direct prohibition of powers of a similar 
character to the States : 

“ Sec. 10 . No State shall enter into any treaty, alliance or confed¬ 
eration ; grant any letters of marque and reprisal; coin money ; 
emit bills of credit; make any thing but gold and silver a tender in 
payment of debts; pass any bill of attainder or exj^ostfacto law, or 
laAV impairing the obligation of contracts; or grant any title of no¬ 
bility. 

“ No State shall, without the consent of Congress, lay any imposts, 
or duties on imports or exports, except what may be absolutely nec¬ 
essary for executing its inspection laws ; and the nett produce of all 
duties and imposts, laid by any State on imports or exports, shall be 
for the use of the treasury of the United States; and all such laws 
shall be subject to tlie revision and control of the Congress. 

“ No State shall, without the consent of the Congress, lay any 
duty on tonnage; keep troops or ships of war in time of peace; 
enter into any agreement or compact with another State, or with u 


[34] 


foreign power, or engage in war unless actually invaded, or in such 
imminent danger as will not admit of delay. 

“ All debts contracted, and engagements entered into^ before the 
adoption of this Constitution, shall be as valid against the United 
States under this Constitution as under the Confederation. 

“ This Constitution, and the laws of the United States which shall 
be made in pursuance thereof, and all treaties made, or which shall 
be made, under the authority of the United States, shall be the 
supreme law of the land, and the judges in every State shall be 
bound thereby, any thing in the constitution and laws of any State 
to the contrary notwithstanding.” 

In the Articles of Confederation the delegates of the States in 
“Congress assembled,” agreed to certain articles of confederation 
and perpetual union between the thirteen States, and the States 
entered into a league of friendship with each other. 

In the Constitution, “The geoide of the United States, in order to 
form a more pefect union, * * do ordain and establish this 

Constitution for the United States of America.” 

In the Articles of Confederation, although every attribute of 
sovereignty is expressly given to the United States “in Congress 
assembled,” and expressly prohibited to the States, there is no de¬ 
posit of coercive power to enforce the laws or to carry out the pow¬ 
ers expressly conferred. 

In the Constitution, all sovereign powers are not only expressly 
granted to Congress and the United States, and all essential powers 
of like character more fully and clearly prohibited to the States, but 
all the machinery of government necessary to e«/orcc the laws a'nd 
compel obedience is therein provided. 

In the Articles of Confederation, no law could be passed by Con¬ 
gress to declare war, make treaties, coin money, ascertain the ex¬ 
penses of government, emit bills, borrow money, ascertain the number 
of vessels of war to be constructed, determine the number of troops 
to be raised, or to appoint a commander in chief of the army or navy; 
nor could any question, except that of adjournment from day to day, 
be determined unless with the assent of nine States of the thirteen. 

In the Constitution, all laios are passed by a majority of each 
house of Congress, except when the President refuses his assent, and 
then by two thirds. 

In the Articles of Confederation, each State maintained its own 
delegates while acting as members of the Committee of the States, 


[35] 


In the Constitution, all members of Congress and other officers of 
the government are paid from the treasury of the nation. 

In the Articles of Confederation, in determining all questions in 
Congress, each State had one vote. 

In the Constitution, every member of either house has one vote. 

In the Articles of Confederation, all charges of war and other ex¬ 
penses incurred for the common defense or general welfare, were 
defrayed out of a common treasury, supplied by the several States, 
the taxes for which were to be levied by the Legislatures of the sev¬ 
eral States. 

In the Constitution, all expenses of the government, whether in 
peace or war, are paid from the treasury of the nation, by imposts, 
duties, and, when necessary, by direct taxation. 

In the Articles of Confederation, each State might, at its discretion, 
furnish its quota of money or troops, and by refusing or neglecting 
so to do, either overturn or destroy the government. 

In the Constitution, that instrument and the laws of Congress 
passed pursuant thereto, are the supreme law of the land, and the 
judges of the States are bound thereby, anything in the constitution 
and laws of any State to the contrary notwithstanding. 

In the Articles of Confederation, it is several times declared that 
the Union shall be perpetual. 

In the Constitution, it is declared that all debts contracted, or en- 
cjagements entered into, before the adoption of this Constitution, shall 
be as valid under the Constitution as under the Confederation. 

Having presented the facts, history and principles involved in 
this important subject, the argument may be fairly closed by regard¬ 
ing as established the following conclusions: 

That sovereignty, from its very nature, cannot belong to a State 
which recognizes a superior, or acknowledges the authority of higher 
power as the “supreme law of the land.” 

That no State can retain its sovereignty, and surrender to another 
the power to make peace or war, negotiate treaties, raise and support 
armies, collect duties and imposts, coin money, &c., and which is at 
the same time prohibited itself from the exercise of these powers. 

That sovereignty is indivisible, and cannot be exercised by. two 
separate authorities over the same inhabitants or territory at the 
same time. 

That the States of the American Union, neither as colonies nor 
States, at any time possessed any of the attributes of sovereignty. • 


[36J 


That the surrender of sovereignty in the Articles of Confederation, 
ostensibly by the States, but in fact by the people, to the “ United 
States in Congress assembled,” though a total prohibition of the ex¬ 
ercise of such powers by the States, was found to be totally inade¬ 
quate to the maintenance of a national government. 

That the Federal Constitution was adopted by the people to sup¬ 
ply the defects of the Articles of Confederation, prohibiting in di¬ 
rect terms all exercise of sovereignty by the States, that such political 
errors might no more impede the power and authority of the nation, 
in order to establish a government of such complete and sovereign 
authority as would entitle it to recognition among the family of na¬ 
tions, as one of the great powers of the earth. 


ALLEGIANCE. 


Allegiance is defined by Webster to be : 

“ The tie or obligation of a subject to liis prince or government; 
the duty of fidelity to a king, government or State.” 

“ Every native or citizen owes allegiance to the government under 
which he is born. This is called natural or implied allegiance, 
which arises from the connection of a person with the society in 
which he is born, and his duty to be a faithful subject, independent of 
any express promise. Express allegiance is that allegiance which 
proceeds from an express promise or oath of fealty. Local or tem¬ 
porary allegiance is due from an alien to the government under 
which he resides.” 

In the United States, there being no kings nor princes, there are 
subjects. The term citizen, under a republican form of govern¬ 
ment, designates the political person who is in relation to the Gov¬ 
ernment here, what the subject is in Europe or elsewhere. Allegi¬ 
ance with us is the same as alleg’mnce everywhere; the form of gov¬ 
ernment makes no difference—the citizen, alike with the subject, owes 
his allegiance to the government under which he was born and 
whose protection he enjoys, fh’otection and allegiance go hand in 
hand ; one is the consideration for the other. The government pro¬ 
vides for the citizen the full enjoyment of life, liberty and property, 
by means of which the Courts of the country—whether Municipal, 
State or Federal—where all questions pertaining thereto may be de¬ 
termined, and all rights enforced, and when he chooses to become a 
denizen of a foreign country, to protection in all the rights and priv¬ 
ileges of an American citizen so situated, and for this pupose all the 
military power of his own government may be put forth for his de¬ 
fense. In return for this protection he is bound to support that 
government by the payment of taxes, duties, imposts, &c., and to 
maintain and defend it by military service when called upon, either 
to enforce the authority of the courts or the laws, suppress insur- 



[38] 

rection or repel invasions, to invade the territory of an enemy against 
whom war has been declared. 

Allegiance is not due from the citizen to a town or city corpo¬ 
ration, to the governing power of a county or State, unless that State 
possesses sovereignty, in full legal sense. Of whatever sovereign 
State or nation he is a citizen or subject, to that State or nation is 
his allegiance due. If the Federal Constitution, “ the supreme law 
of the land,” recognized such a political being as a citizen of a State^ 
then allegiance to the State would follow ; but in that instrument 
Congress is given power to “ establish a uniform rule of naturaliza¬ 
tion,” and by virtue of that authority Congress has enacted laws for 
the naturalization of aliens, by which, through the courts of the 
country, the alien, after five years residence, becomes not a citizen of 
any one State of the Union, but of the United States of America^ 
upon satisfactory proof that he is attached to the principles, not of 
the Constitution of any particular State, but of the Constitution of 
the United States, and upon condition that he renounce all allegi¬ 
ance to any foreign prince. State or sovereignty whatsoever, and 
that he will bear true faith and allegiance^ not to any State, but to 
the United States of America^ upon which a certificate issued to him 
to the effect that he is entitled to all the rights, privileges and im¬ 
munities of a citizen of the United States. 

The second section of article first of the Federal Constitution de¬ 
clares, that “ No person shall be a representative who shall not have 
attained the age of twenty-five years, and been seven years a citizen 
of the United States f and “who shall not when elected be an inhah- 
itant of that State from which he shall be chosen.” 

Section third of the same article declares, that “ No person shall 
be a Senator who shall not have attained the age of thirty-five years 
and been nine years a citizen of the United States, and who shall not 
when elected be an inhabitant of the State for which he shall be 
chosen.” 

Section one of article second provides, that “ No person except a 
natural horn citizen of the United States at the time of the adoption 
of this Constitution, shall be eligible to the office of President.” 

In these provisions we have seen that the alien born may under the 
Constitution and laws of Congress becomes a citizen of the United 
States, by swearing allegiance thereto. The qualifications of Senators 
and members of Congress are, that they shall be respectively seven 


[39J 


aud nine years citizens of the United States^ and inhahitants of the 
States from they shall have been chosen. 

From these provisions it is conclusively shown that the political 
person known as a citizen of the United States, as distinct from an in¬ 
habitant of his State, is defined in that instrument, that his allegi¬ 
ance is due, not to the State of which he is an inhabitant, but to the 
United States, of which he is a citizen. 

The Constitution requires that the rules of naturalization which 
Congress shall have power to establish shall be ‘‘ uniform'' Why uni¬ 
form ? Evidently because, were the subject left to the control of the 
States in any degree, the residence, conditions and terms upon which 
naturalization or citizenship could be obtained, v’ould lead to intermin¬ 
able confusion; it is required to be uniform because the citizen thus 
transformed from an alien is a Federal ^-itizen, and not the citizen 
of a State; and the proposition is advanced that the Constitution 
recognizes in the native-born citizen the citizen of his State, and 
not of the United States, as in direct antagonism to the naturalized 
citizen of the United States, and not of any State—the one owing al¬ 
legiance to his State, the other to the United States, and bound by 
the Constitution of the country, whenever any assumed conflict might 
arise between the State and Federal Grovernment, to fight against the 
National authority, in support of the government of his State, the 
other to bear arms against the insurrectionary State in defense of the 
Federal power, and to enforce the “ Supreme law of the land.” That 
the fathers had bequeathed to us such an inheritance of interminable 
discord and strife, is an absurdity, which belongs properly to that 
school which proclaims the sovereignty of the States, and constitu¬ 
tional secession. 

The third section of the third article of the Constitution declares, 
that “ Treason against the United States, shall consist in levying 
war against them, or adhering to their enemies, giving them aid and 
comfort.” Treason is a violation of the obligation of allegiance by 
the citizen in the effort to overthrow the sovereign power of his own 
country to which his allegiance is due, by armed insurrection, or in 
giving aid and confort to the enemy with which his country is at war. 

A government not possessing sovereignty, can neither claim nor de¬ 
mand allegiance; where there is neither sovereignty nor allegiance 
there can be no treason, which is defined to be a crime against the na¬ 
tion’s life, and punishable as such by death, confiscation and expatri¬ 
ation, a punishment inflicted upon no other crime. 


[40] 


Webster defines Treason as follows: “Treason is the highest 
crime, of a civil nature, of whic|i man can be guilty. Its signification 
is ditferent in different countries. In general^ it is the offense of at¬ 
tempting to overthrow the government to which the offender owes al¬ 
legiance; or of betraying the State into the hands of a foreign power. 
In monarchies the killing of a king, or attempting to take his life, is 
treason.” 

The third section and article of the Federal Constitution also de¬ 
clares that“ Congress shall have power to declare the punishment for 
treason.” 

Under the power to punish treason. Congress shall declare what 
punishment shall be, and its definition in the Federal Constitution, 
as a crime against the United States, is certainly the most conclusive 
evidence as to the intentions of the people in adopting that instru¬ 
ment, that the Government thereby established should constitute a 
sovereign nation^ resting upon the basis of the allegiance of the 
American citizen. 

It has been most vehemently urged by the leaders and authors of 
the late rebellion, that the States, under the principles of the Amer¬ 
ican Constitution, possessed the legal right at any time to secede 
from the Union, and claiming that right, because, as alleged, 

First: That the States were sovereign and independent, and supe¬ 
rior to the Federal Government. 

Second: That the Federal Constitution did not establish a national 
Government, but was a mere confederation or compact, between sove¬ 
reign and independent States, to be rescinded at the pleasure of any 
of the parties thereto. 

Third : That the citizen of the United States, known to the Con¬ 
stitution, was not in ffict a Federal citizen, owing his allegiance to 
the eommon government of the nation, but a citizen of the State in 
which he was born, resided, or in which he obtained naturalization ; 
that his allegiance was due to the government of such State, with all 
the ineideuts of such allegiance, including military service in time 
of war, even against the national authority. 

These propositions embody the political creed of the secessionist. 
The argument so far has been in direct reply to the first and second, 
and is of easy application to the third. Each one of these fallacies is 
dependent on the other; if one is false, as a necessity all are false; 
and without any fear as to the result of this investigation so tar 


[41] 


upon any rational mind, the subject might with perfect safety be 
concluded here; but there are other considerations not yet presented, 
which may not be found valueless in disposing of the present ques¬ 
tion. 

With those who have participated in the rebellion, and as a con¬ 
sequence been deprived of the privilege of the elective franchise in 
many of the States, it is a matter of common complaint that their 
rights as American citizens have been wrested from them illegally. 

The following provision has from the first establishment of the 
several State governments, been engrafted substantially, and perhaps 
literally, upon most of the State constitutions : 

“ Every white male citizen of the United States^ of twenty-one 
years of age, who shall have been a resident of the State one year, 
shall be entitled to vote at all elections.” 

By this provision it will be seen that it is the first essential quali¬ 
fication of the voter under the constitutions of the several States, 
that he shall have been a citizen of the United States. Without this, 
in no State in the South is any man eligible to office or capable of 
voting. 

According to the political faith of the secessionist there is no such 
person known to the law as a citizen of the United States, but that 
every man is a citizen of his State only, owing his allegiance to its 
sovereign authority; and claim as alone derived therefrom every civil 
and political right to which he is entitled; so that while he insists 
that he is not, neither is any one a citizen of the nation, how absurd 
is the complaint that, as an American citizen, he has been robbed of 
his privileges by the action of his State government, while in the 
same breath he declares that all the rights and privileges which he 
can or may enjoy, are derived directly from it, and not from any 
power or authority of the National Government. 

The proceeding or process of secession, or the withdrawal of one 
or more States of the Union from further connection with the Gov¬ 
ernment and the other States, if a legal and constitutional right, as 
claimed, must of necessity be practicable through agents or parties 
legally qualified to consummate such a proceeding. States are ad¬ 
mitted to the Union by the action of a majority of their people in 
the adoption of a constitution, republican in form. Could a State 
withdraw again from such connection, of course it must be done le¬ 
gally and by the voice of a majority of the people—not of the men, 
women, minors and aliens—but by the voice of a majority of the 


[42] 

male inhabitants, of the age of twenty-one years, citizens of the 
United States, entitled to the elective franchise under the law of the 
State. If it is true, as claimed by the advocates of secession, that 
there is no such political being as a citizen of the United States, then 
according to the letter of the State constitutions, there is no where 
to be found a person qualified to vote at any election to be held for 
such purpose. If it is true, on the other hand, that the citizen is 
entirely and only a citizen of the United States, owing his allegiance 
to the Government of the nation, because of its sovereignty to which 
that allegiance is due as a consequence of his Federal citizenship, 
how can he bear “true faith and allegiance” to that Government, 
and prostitute'his highest privilege for the purpose of its overthrow, 
which must instantly follow whenever it is conceded that the States 
can destroy the nation by releasing themselves from their obligation 
to maintain it; and the citizen who becomes a party to any move¬ 
ment having such purpose, becomes at once a traitor, in law and in 
fact, exposing himself to the penalties of treason. The very fact of 
his national citizenship wholly precludes him from such a proceed¬ 
ing, makes any such act a legal nullity, and stamps it at once as one 
of revolution and crime. So that, under every view of the argument, 
no one can be found who has the lawful power or authority even to 
cast a ballot for such a purpose; and though every inhabitant of 
every State should vote for secession, although it might in fact 
amount to revolution, in a constitutional and loyal sense it would be 
simply null and void, unless pursuant to previous action of the Con¬ 
gress of the United States, in accordance with the provisions of the 
Constitution. 

In conclusion, may it not be well to consider that the right of 
“eminent domain” is one of the indispensable attributes of a sov¬ 
ereign nation? The million homes of the people, obtained by pur¬ 
chase from the National Government, to them, their heirs and assigns, 
forever, stand as an eternal guarantee that the power of that Govern¬ 
ment shall be put forth to protect them in the enjoyment of the soil 
thus obtained, throughout all coming time, so long as their genera¬ 
tions shall live upon the earth. Without this element of nerpetuity, 
in the guarantee of title in the homes of the people, as well as in 
the Government from which it springs, the grants of title to the soil 
from the Government to the people would be but a swindle, a mockery 
and a farce. The territories which have been ceded to the General 
Government by the States, as well as those obtained by treaty, ces- 


[43] 


^ion and conquest from other nations, comprise the domain, the soil 
of the nation. If there is no allegiance from the citizen to the na¬ 
tion—if the States are sovereignties still, and may withdraw from the 
nation at pleasure, as a consequence of that withdrawal, the domain 
which they have ceded, as well as that within their borders, granted 
by the Grovernment to its people, can and must revert to the States; 
and their inhabitants, whose fathers had purchased the soil, confiding 
in the sovereign power and perpetuity of the nation, become at once 
outcasts and beggars to the new power that wrests from them their 
inheritance. 

In whatever view we present the subject, we are driven to con¬ 
clude :— 

That a Confederacy of States cannot establish a nation; 

That Sovereignty, with all its incidents of war, peace, treaty and 
eminent domain, is indispensable to the existence of a nation; 

That the fathers engrafted all of these principles upon the Ameri¬ 
can Constitution, that through the indissoluble and perpeual Union 
thus established, we might become a great nation among the powers 
of the earth. 


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